Free Motion for Disbursement of Funds - District Court of Colorado - Colorado

Case 1:01-cv-00645-JLK

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 01-cv-645-JLK SECURITIES AND EXCHANGE COMMISSION Plaintiff, v. KENNETH ROY WEARE a/k/a ROY WEAVER, J&K GLOBAL MARKETING CORPORATION, and AAA-AUCTION.COM, INC., Defendants.

UNOPPOSED MOTION FOR ORDER AUTHORIZING AND DIRECTING PAYMENT OF ADDITIONAL ALLOWED CLAIMS, WITH CERTIFICATE OF COMPLIANCE

Patten, MacPhee & Associates, Inc., the Court-appointed Receiver, by and through its attorney, hereby moves the Court for an order authorizing and directing the payment of $1,125 in additional allowed claims, in the manner set forth below, from funds held in the registry of the Court under this case name and number. In support thereof, the Receiver states as follows: 1. On July 27, 2007, the Receiver filed with the Court Receiver's Combined Status

Report and Motion for Order Authorizing and Directing Payment of Allowed Claims and to Set Hearing Date on Claimants' Motions for Review by Court ("July 27 Status Report and Motion"). Among other things, the July 27 Status Report and Motion asked the Court to approve the payment of 1,746 allowed claims, totaling $2,124,980.

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2.

On July 31, 2007, the Court entered its Order Authorizing and Directing Payment of

Allowed Claims and Setting a Hearing Date on Claimants' Motions for Review ("July 31 Order"), granting the relief requested by the Receiver in its July 27 Status Report and Motion. 3. At the time of filing the July 27 Status Report and Motion, the Receiver reported to

the Court that it had continued to receive, review and consider claims submitted after the Claims Bar Date, while still recognizing their "subordinate" position, based on the Receiver's expectation that the total amount of claims allowed, including all Late-Filed Claims, would not exceed the amount of funds held in the registry of the Court. Therefore, the Receiver requested, and the July 31 Order expressly granted to the Receiver, the absolute discretion to determine the date after which no new or supplemental claim would be considered. The July 31 Order also granted to the Receiver the right to supplement its motion for the payment of additional allowed claims at any time prior to the hearing now set for October 15, 2007, in order to obtain from the Court an order approving the payment of any claim considered, or reconsidered, by the Receiver after filing the July 27 Status Report and Motion. 4. On September 7, 2007, the Receiver filed with the Court its Unopposed Motion for

Order Authorizing and Directing Payment of Allowed Claims ("September 7 Motion"), asking the Court to authorize the payment of an additional 14 claims, totaling $23,625. That day, the Court entered its Order Authorizing and Directing Payment of Allowed Claims ("September 7 Order"), granting the relief requested by the Receiver in its September 7 Motion. The September 7 Order expressly granted to the Receiver the right to supplement its motion for the payment of additional allowed claims at any time prior to the hearing set for October 15, 2007, in order to obtain from the -2-

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Court an order approving the payment of any additional claim considered, or reconsidered, by the Receiver after filing the July 27 Status Report and Motion. 5. After filing the July 27 Status Report and Motion ­ but before August 10, 2007, the

date after which no new or supplemental claim has been considered by the Receiver ­ the Receiver considered an additional 3 claims for which it now seeks the Court's authorization for payment. Attached at Exhibit A is a list of those 3 additional claims. Exhibit A identifies each claimant by claim number, first initial, last name, city, state/province and country. As set forth in Exhibit A, the total amount claimed by these 3 claimants was $2,500, and the total amount allowed by the Receiver with respect to their claims is $1,125. These claims were not included in the September 7 Motion because these claimants still had the right to seek reconsideration of their claims and/or review by the Court and those rights had not been exhausted as of September 7, 2007. 6. It is the Receiver's understanding that, as of September 13, 2007, there was

$1,538,805.35 of principal and $19,862.50 of interest being held in the registry of the Court under this case name and number. 7. After taking into consideration (1) reasonable reserves for the Motions For Review

By Court filed by James Raissis and Robert Lee Pillow, III, which are pending before the Court; (2) the Receiver's professional fees and out-of-pocket expenses to be requested in its Eighth Application For Fees and Expenses to be filed with the Court in the next few days; (3) the Receiver's and the Tax Administrator's estimated fees and expenses to perform their remaining duties; and, (4) the amount of all anticipated income taxes and other expenses payable by the receivership estate, there are more than adequate funds available to pay the claims identified in Exhibit A. -3-

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8.

The Receiver, therefore, respectfully requests that the Court enter an order directing

the Clerk of the Court to pay a total of $1,125 to the claimants identified and in the amounts allowed in Exhibit A. 9. The Receiver is prepared to deliver to the Clerk of the Court's Financial Supervisor

a Microsoft Excel spreadsheet containing all of the data needed to prepare and issue the requested checks, upon receipt of the Court's order. 10. As noted in the Receiver's July 27 Status Report and Motion, the Receiver has

received a substantial number of duplicate claims from investors during the claims administration process. Although the Receiver has asked the Court to allow and authorize payment of all claims listed in Exhibit A, the Receiver requests that the Court's order expressly provide that the allowance and payment of any claim remains subject to the Receiver's ongoing review for duplicate claims. The Receiver, therefore, requests that it be allowed to withhold delivery of any check issued pursuant to this motion, if it subsequently discovers that the payment of any claim identified in Exhibit A would result in the payment of a duplicate claim.

CERTIFICATE OF COMPLIANCE 11. On October 1, 2007, the undersigned conferred with Leslie Hughes, counsel for the

SEC, and outlined the general nature of the Receiver's motion contained herein. Ms. Hughes indicated that she has no objection to this motion. WHEREFORE, the Receiver respectfully requests that the Court enter an order authorizing and directing the payment of $1,125 in connection with the 3 additional allowed claims set forth in

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Exhibit A, in the manner and amounts proposed herein, from funds held in the registry of the Court under this case name and number. DATED this 2nd day of October, 2007. s/ Michael D. Burns Michael D. Burns, #11631 1775 Sherman Street, Suite 2900 Denver, Colorado 80203 Telephone: (303) 296-2900 FAX: (303) 296-4475 E-mail: [email protected] Attorney for Receiver

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CERTIFICATE OF SERVICE I hereby certify that on October 2, 2007, I electronically filed the foregoing UNOPPOSED MOTION FOR ORDER AUTHORIZING AND DIRECTING PAYMENT OF ADDITIONAL ALLOWED CLAIMS, WITH CERTIFICATE OF COMPLIANCE with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses: Leslie J. Hughes [email protected] Christine J. Jobin [email protected] Thomas J. Krysa [email protected],[email protected] and I certify that I have caused to be mailed a copy of the foregoing to the following non-CM/ECF participants via U.S. mail, postage prepaid: James Raissis Raissis Solicitors Suite 502, 3 Waverly Street Bondi Junction, NSW 2022 AUSTRALIA Robert Lee Pillow, III 19139 Babrof Drive Eagle River, AK 99577-8677

s/ Michael D. Burns Michael D. Burns, #11631 Attorney for Receiver 1775 Sherman Street, Suite 2900 Denver, Colorado 80203 Telephone: (303) 296-2900 FAX: (303) 296-4475 E-mail: [email protected]